Delhi District Court
State vs . Sanjay Gupta on 9 March, 2022
CNR No. DL CT 02-0221092021
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE-07, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DL CT02-0221092021
CIS No. 2773/2021
State Vs. Sanjay Gupta
CC No. 22/2021
PS. RPF/NDLS
U/s. Section 3 of The Railway Property (Unlawful
Possession) Act 1966
JUDGMENT
1) The date of commission of offence : 13.08.2021
2) The name of the complainant : SI Uttam Kumar
3) The name & parentage of accused : Sanjay Gupta S/o Late Manoj Gupta
4) Offence complained of : Section 3 of The Railway Property (Unlawful Possession) Act 1966
5) The plea of accused : Pleaded not guilty
6) Final order : Convicted
7) The date of such order : 09.03.2022 Date of Institution : 23.10.2021 Judgment reserved on : 09.03.2022 Judgment announced on : 09.03.2022 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2022.03.09
16:26:49
+0530
State Vs. Sanjay Gupta; CIS No. 2773/2021; CC no. 22/2021; PS. RPF/NDLS; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 1/7 CNR No. DL CT 02-0221092021 BRIEF REASONS FOR THE JUDGMENT:
1) The case of the railways is that on 13.08.2021 at about 3:20 hours near DLI end of platform no.16 in NDLS yard within the area of RPF/NDLS accused was apprehended by RPF Staff and he was found in the possession of 14 pendrol clips which was a railway property, suspected of having been stolen or obtained unlawfully.
2) After inquiry, complaint was filed by the inquiry officer.
Vide order dated 23.10.2021, this court dispensed with the recording of pre-summoning evidence as the complaint was made by the public servant in discharge of his official duties. Accused was produced before the court and pre-charge evidence was recorded. Pre-charge evidence was closed and the arguments on the point of charge were heard. Charge for the offence U/s 3 RP (UP) Act was framed upon accused to which he pleaded not guilty and claim trial. Accused refused to further cross-examine the witnesses of the railways who deposed during pre-charge evidence. After considering the submissions of the accused no further post charge evidence was lead and the matter was fixed for recording of statement of accused. Thereafter statements of accused was recorded in which accused denied all the allegations and opted not to lead defence evidence. Final arguments were advanced by Ld PP for RPF and Ld Defence Counsel.
3) The evidence lead during the stage of pre-charge evidence is to considered. Five witnesses were examined by the Railways and all were cross-examined by the Ld Defence Counsel. It is necessary to go through the testimony of these five witnesses to appreciate as to whether the prosecution has been able to State Vs. Sanjay Gupta; CIS No. 2773/2021; CC no. 22/2021; PS. RPF/NDLS; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 2/7 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2022.03.09 16:26:57 +0530 CNR No. DL CT 02-0221092021 discharge its burden of proof or not.
4) PW1 SSE Binod Kumar deposed that on 13.10.2021 during the track inspection 14 pendrol clips were found deficient from track in NDLS yard near platform no. 14-15 DLI end for which theft memo Ex.PW1/A was prepared. He deposed that on 08.09.2021 he examined the case property of the present case and issued a report Ex.PW1/B to the effect that the case property is a railway property which is used for fastening railway sleeper with railway lines.
5) PW2 IPF/ Shri Lal Meena and PW5 ASI Sunil Singh deposed on the same lines that on 13.08.2021 they were on patrolling in the area of NDLS Yard vide Ex.PW2/A. They deposed that they saw a person in suspicious condition while carrying white plastic bag who was stopped near DLI end of platform no.16 whose name was revealed as Sanjay Gupta who is the accused of the present case. They correctly identified the accused. They deposed that accused was found in the possession of 14 pendrol clips for which he failed to produce any authority and consequently arrested at about 3:30 hours vide Ex.PW2/B. They deposed that case was registered at about 4:30 hours vide DD Ex.PW2/C and inquiry was marked to ASI Uttam Kumar. The case property was given Ex.P1 to Ex.P17 which includes seal cards Ex.P1 and Ex.PW2.
6) PW 3 Naresh Kumar deposed that on 13.08.2021 the present case was entered in crime register at the instance of SI Rattan Lal Meena. The copy of crime register is proved as Ex.PW3/A. State Vs. Sanjay Gupta; CIS No. 2773/2021; CC no. 22/2021; PS. RPF/NDLS; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 3/7 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.09 16:27:02 +0530 CNR No. DL CT 02-0221092021
7) PW4 SI Uttam Kumar deposed as to the inquiry conducted by him. He deposed as to the disclosure statement Ex.PW4/A, pointing out memo Ex.PW4/B and confessional statement Ex.PW4/C prepared at the instance of the accused. He deposed as to the verification of the case property and the documents prepared during the inquiry. He correctly identified the accused.
8) Before appreciating the testimony of prosecution witnesses the necessary ingredients of the offence U/s 3 RP UP Act as explained by Hon'ble Apex Court in judgment titled as State of Maharashtra vs Vishwanath Tukaram (1979) (4) SCC 23 are required to be mentioned. These ingredients are as follows:
a) The property in question should be a railway property;
b) It should be reasonably suspected of having been stolen or unlawfully obtained; and
c) It should be found or proved that accused was or had been in possession of that property.
9) The first poser is whether the property recovered from the possession of accused was a railway property or not. On this aspect the testimony of PW1, PW2 and PW5 are relevant. PW2 and PW5 deposed that the accused was found in the possession of 14 pendrol clips which was a railway property. PW1 categorically deposed that on 08.09.2021 he examined the case property of the present case and concluded that the same is the 14 pendrol clips which is a railway property. The examination report is Ex.PW1/B. It was simply mentioned to PW1 that he did not examine the case property which was denied by PW1. I found no reason to disbelieve the testimony of PW1, PW2 and PW5. There is nothing on record which could be the reason or motive for PW1 to falsely State Vs. Sanjay Gupta; CIS No. 2773/2021; CC no. 22/2021; PS. RPF/NDLS; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 4/7 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.09 16:27:08 +0530 CNR No. DL CT 02-0221092021 depose that the case property recovered was a railway property or to file a false report as to the verification of property. There is no contradiction at all in the testimony of RPF officials on the fact that the case property was recovered was railway property. In view of the testimony of railway officials, the report as to the verification of the property and the fact that property recovered is exclusively used in railways and is not available in open market proves on record that the property recovered ie. 14 pendrol clips were railway property.
10) On the poser of the possession of the accused as to the railway property and the poser as to the theft or unlawfully having the possession of railway property, the testimony of PW2, PW4 and PW5 are relevant. PW2 and PW5 deposed that the accused was found in the possession of 14 pendrol clips to which the accused fail to produce any authority for keeping or carrying the same. The testimony of 4 is also specific as to the confessional statement Ex.PW4/C made by the accused thereby voluntarily admitting his guilt regarding the theft of railway property. The recovered 14 pendrol clips have been proved to be the railway property in view of the above-discussion. The confessional statement made by the accused to the inquiry officer is also relevant and admissible on the strength of judgment of Hon'ble Apex Court titled as Balkishan A.Devi Dayal & Ors. Vs State of Maharashtra 1981 AIR(SC) 379 wherein it was held that character of inquiry under Railway Property (Unlawful Possession) Act is different from the investigation under the Code of Criminal Procedure and therefore any confession before an officer of Railway Protection Force in the course of his inquiry is State Vs. Sanjay Gupta; CIS No. 2773/2021; CC no. 22/2021; PS. RPF/NDLS; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 5/7 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.09 16:27:12 +0530 CNR No. DL CT 02-0221092021 not to be excluded from evidence U/s 25 of Indian Evidence Act. It was held by Hon'ble Bombay High Court in the judgment titled as Saleem Mohd Babul Meniar Vs State of Maharashtra 2001 Criminal Law Journal 58 that the conviction can be based for the offence U/s 3 RP (UP) Act on the basis of the confessional statement of the accused. The confessional statement of the accused has been proved on record by the inquiry officer PW4. The confessional statement is categorical as to the possession of accused of the railway property.
11) In the cross-examination of PW2, PW4 and PW5 only bald suggestions were made by the Ld Defence Counsel that the case property was not recovered from the possession of accused. This suggestion in itself is not sufficient to discard the testimony of railway police official made on oath. There is nothing on record as to any circumstance which could be the reason for the railway police officers to falsely implicate the accused. By virtue of testimony of railway police officers and documents proved on record, the possession of accused of the 14 pendrol clips which is a railway property, has been proved on record.
12) No explanation given by the accused as to his possession of railway property. In the judgment titled as The Public Prosecutor Vs Shariq Galib and others 1975 Criminal Law Journal 952 Hon'ble High Court of Andhra Pardesh observed that- once it is established that the property recovered is a railway property and is reasonably suspected to having been stolen, the burden shift upon the accused to show how he came into the lawful possession of the same. The Hon'ble Allahabad High Court in the judgment titled as Kallu Ram Vs State of UP 1975 Criminal Law Journal State Vs. Sanjay Gupta; CIS No. 2773/2021; CC no. 22/2021; PS. RPF/NDLS; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 6/7 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.09 16:27:17 +0530 CNR No. DL CT 02-0221092021 160 observed where a person was found to be in possession of railway property, it was only that person who could explain how it came into the possession.
13) In the case in hand there is no explanation whatsoever by the accused as to his possession of railway property. The 14 pendrol clips used in the railway coaches are not something which could be used somewhere else or which could be procured easily from the market. They are of a special make to be used in railways only. The accused being found in the possession of 14 pendrol clips and has not furnished any explanation as to the possession clearly reveals that the 14 pendrol clips were either obtained by theft or obtained unlawfully.
14) Accordingly, all the ingredients of offence U/s Section 3 of the Railway Property (unlawful Possession) Act 1966 Act stands satisfied. Accused is hereby convicted for the offence Section 3 of the Railway Property (unlawful Possession) Act 1966 Act. Case property be released to the concerned department of railway/rightful owner after expiry of period of limitation for appeal. Copy of the judgment be supplied free of cost. Be heard on point of sentence.
Digitally signed by KAPIL KAPIL KUMAR
KUMAR Date:
2022.03.09
16:27:23 +0530
Announced in the open court (KAPIL KUMAR)
on 09.03.2022 Metropolitan Magistrate-07
Central District, Tis Hazari Courts/Delhi State Vs. Sanjay Gupta; CIS No. 2773/2021; CC no. 22/2021; PS. RPF/NDLS; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 7/7